Affirmative “Re-action”: How Are Major Bar Associations Responding to Students for Fair Admissions?
Last summer, the Supreme Court, in Students for Fair Admissions v. President and Fellows of Harvard College, held that considerations of race, at least in the context of university admissions, were unconstitutional. But what about in the admissions, hiring, and promotional practices of law schools and law firms? After all, one of the stated goals of the American Bar Association (ABA) is to “eliminate bias and enhance diversity in the legal profession,” which it has historically pursued by urging law schools and firms to practice affirmative action.
Indeed, on the day the Supreme Court released its decision, the ABA made clear its intent to defy the spirit of the ruling. “The ABA has a long history of supporting affirmative action,” ABA President Deborah Enix-Ross wrote in an official statement. “We believe it is imperative that colleges, universities, and state legislatures find alternative ways to create a diverse and talented student body.”
A new review of the official guidance from an array of bar associations finds an alarming willingness to flout the high court’s ruling and continue to discriminate on the basis of race.
To that end, the ABA launched a four-part series of online workshops called “The Path Forward: Discussions and Strategies in Ensuring Diversity, Equity, and Inclusion post-SFFA v. Harvard.” The series includes four 90-minute-long videos on how higher education, the private sector, the government, and courts can continue “to share information, facilitate discussion, and provide concrete recommendations to sustain the ongoing quest for a more equitable society for all.” Three of the videos are available to the public for viewing, but one, “Empowering Diversity: Navigating Admissions After SFFA v. Harvard,” requires users to enter a password to watch.
Much of the information found in the Path Forward series is based on a 93-page report from the New York State Bar Association (NYSBA). The report, which was spearheaded by former U.S. Attorney General Loretta Lynch, former Secretary of Homeland Security Jeh Johnson, and Paul Weiss LLP Chairman Brad Karp, calls Students for Fair Admissions a “setback to efforts to achieve diversity.” It offers law schools, law firms, and state courts guidance on how to consider race while still–the authors claim–following the law.
The NYSBA report advises law schools to continue to consider applicants’ racial identities by tying this feature to “a non-racial goal or value” central to the university. This way, if the school ever faces a lawsuit, administrators can argue that any preference given to black or Hispanic students isn’t based on race itself, but instead on the student’s “lived experience,” which aligns with institutional diversity and equity goals. The report also calls on law schools to eliminate the LSAT as a requirement for admission because “standardized admissions tests have been criticized as inherently racially biased.”
Meanwhile, NYSBA recommends that law firms in New York require senior leadership to show support for diversity, equity, and inclusion (DEI) initiatives. These initiatives include race-based affinity groups and Mansfield Certification, a process that encourages law firms to hire and promote a set percentage of “historically underrepresented” lawyers each year. For New York State courts, NYSBA advises that they collect data on the racial make-up of judges, court personnel, and applicants for positions in the court system.
Most, if not all, of these recommendations will face legal challenges in the wake of Students for Fair Admissions. NYSBA admits as much in its report, advising law firms to hire counsel to “identify potential legal risks and seek advice on risk mitigation strategies” as they double down on affirmative action and DEI.
To avoid lawsuits, which are starting to materialize based on the framework of Students for Fair Admissions, law schools, law firms, and state courts should stop discriminating on the basis of race. My review of the ABA and NYSBA’s guidance, in particular, found that both also endorse “pipeline programs,” initiatives that provide low- and middle-income students, of all racial and ethnic backgrounds, with free academic tutoring, standardized test prep, mentoring, and other resources to help them enter the legal profession. These programs, while at odds with the ABA and NYSBA’s race-conscious recommendations, are in line with Students for Fair Admissions and are a viable alternative to affirmative action.
In a pluralist democracy like the U.S., it is possible for the legal profession to assist and train future lawyers from all backgrounds. Race-neutral pipeline programs, which have the benefit of relying on merit, are the way forward.
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